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Home My WebLink AboutC-2645 - Encroachment Agreement and Declaration of Covenants between Landowners (Non-Standard Fence and Sidewalk Improvements) (for End of Pelican Court Cu-de-Sac)COSYgERAT1f► EXEMPT RECORDING REQUEST 86- 571139 (-/ GOVERNMENT CODE 6103 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk% V %'" 'Y CITY OF NEWPORT BEACH 3300 Newport Boulevard,' Newport Beach, CA 92663-3884 EXEMPT C14 RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY CALIFORNIA -1 n PM NOV 20'86 coo, ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS (NON-STANDARD FENCE AND SIDEWALK IMPROVEMENTS) THIS AGREEMENT is made and entered into this /L3 day of -2%v-j7741. , 1986, by and between the CITY OF N t BEACH, a municipal corporation, hereinafter referred and BAYVIEW I, a Joint Venture, hereinafter referred WITNESSETH " y" 9 Cti BE -ACNE • I9 ER" o _c ) \C3 flECEIVP WHEREAS, CITY administers certain public property located City of Newport Beach, County of Orange, State of California, property is more particularly described in Exhibit "A" hereto and by this reference incorporated within; and WHEREAS, OWNER owns a portion of that certain real property located on the corner of Bristol Street and Jamboree Road in the City of Newport Beach, County of Orange, State of California, which real property is more particularly described as Tract 12212 which real property is contiguous to the aforesaid public property as shown on Exhibit "A"; and in the which N0 Tl WHEREAS, said public property also contains public utility easements.; and WHEREAS, CITY desires to condition approval of construction of non-standard fence and sidewalk improvements over a portion of said public property; and WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct said non-standard fence and sidewalk; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that "non-standard fence and sidewalk improvements" shall be defined as thewroughtiron fencing and sidewalk which is constructed on Lot 51 of Tract 12212 at the cul-de-sac on Pelican Court. 2. CITY will allow OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace non-standard fence and sidewalk improvements. All in substantial conformance with plans and specifications therefor on file in the CITY's Public Works and Building Departments of the City of Newport Beach, in, on, and across that certain public property described in Exhibit "A" hereto. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. -2- 3. OWNER and CITY further agree as follows: .(a) OWNER shall construct and install non-standard fence and sidewalk improvements, all in substantial conformance with plans and specifications therefore on file in the CITY's Public Works and Building Departments, in, on, and across that certain public property described in Exhibit "A" hereto. (b) OWNER shall maintain the aforesaid non-standard fence and sidewalk improvements and facilities in accordance with general prevailing standards of maintenance, and to pay all costs and expenses incurred in doing so. Should a dangerous or defective condition of said improvements occur, OWNER understandsandagrees that they are responsible for such condition, and further agrees to proceed immediately to correct the condition. In the event the City Council of the City of Newport Beach determines, after a public hearing held on at least thirty (30) days' prior to written notice to OWNER, that OWNER has failed or ceased to maintain the aforesaid improvements as required by this paragraph, OWNER agrees that CITY may, at CITY's option, assume the maintenance thereof and may bill OWNER directly for the costs of such maintenance. OWNER agrees to pay the amounts set forth in said bills promptly, upon receipt of such billing. CITY resolves to itself the right to make such emergency repairs to the improvements and facilities installed by -3- OWNER pursuant hereto as it deems necessary for the immediate protection of the public health and safety. OWNER agrees to promptly reimburse CITY for the reasonable costs and expenses incurred by CITY in effecting such emergency repairs. (c) That should CITY be required to enter onto any easements owned by CITY to exercise its primary rights associated with said easements, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of the water, sewer, street light, storm drain or other facilities, the CITY may remove portions of the non-standard street median improvements and in such event: 1) CITY shall notify OWNER of its intention to accomplish such work; 2) OWNER shall be responsible for arranging for any renewal or restoration of the non-standard fence and sidewalk improvements affected by such work by CITY: 3) CITY agrees to bear the portion of the costs of any such renewal or restoration of the non-standard fence and sidewalk improvements not in excess of the cost which would be incurred for the restoration or renewal of standard street improvements in the same location; 4) OWNER agrees to pay any costs of renewal or restoration of the non-standard fence and sidewalk improvements in excess of the costs to be paid by CITY. -4- (d) OWNER agrees to indemnify, hold harmless, and defend CITY, its officers, agents and employees, from any and all demands, claims, losses or liability that arise from, or are in any way related to, the maintenance, renewal, restoration or replacement of the non-standard fence and sidewalk improvements. OWNER is not obligated hereunder to indemnify, hold harmless or defend CITY or its officers, agents or employees for injuries, claims, losses or damages that arise out of the existence of the non-standard fence and sidewalk improvements. 4. These restrictions, covenants and agreements may be modified, amended or terminated jointly by the parties hereto, or their heirs, assigns or successors, expressed in writing and recorded in the Office of the County Recorder of Orange County, California. 5. The provision hereto shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provisions hereof. 6. It is mutually agreed that this Agreement shall be binding upon the heirs, successors and assigns of OWNER and shall be recorded in the Office of the County Recorder of Orange County, California; provided, however, that OWNER may, without CITY's -5- consent, assign its right and obligations under this assignment to a community association responsible for the maintenance of the adjacent private streets and upon such assignment, OWNER shall be relieved of any obligations to CITY hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney -6- CITY OF NEWPORT BEACH a Mun' Corporation By Mayor BAYVIEW I, a joint venture composed of J.M. PETERS COMPANY, INC., a California corporation, and DSL SERVICE COMPANY, a California corporation By: J.M. PETERS COMPANY, INC. a California corporation, a joint venturer, authorized agent By: Robert J. , r:.. Vice esi. -nt Robert C. Liewe ice President STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this day of , 1986, before me, a Notary Public, State of California, personally appeared Robert Burnham, known to me to be the City Attorney of the City of Newport Beach, the municipal corporation described in and that executed the within instrument, and also known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the same. WITNESS my hand and official seal. STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this /7 1 day of !,4-:(U.A) , 1986, before me, a Notary Public in and for said State, personally appeared Robert J. Trapp and Robert C. Liewer, personally known to me or proved to me on the basis of satisfactory evidence to be the persons who executed the within instrument as Vice President and Vice President or on behalf of J.M. PETERS COMPANY, INC., a corporation, and acknowledged to me that they subscribed the name of the corporation, said corporation being one of the joint venturers of BAYVIEW I, the joint venture therein named. WITNESS my hand and official seal. OFFICIAL SEAL CHRISTINA E. LIEBL NOTARY PUBLIC • CALIFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY My Commission Exp. Nov. 4,1988 c